TO:
Honorable Mayor and Members of the City Council
THROUGH:
Mark Danaj, City Manager
FROM:
Marisa Lundstedt, Community Development Director
Laurie Jester, Planning Manager
Jason Masters, Assistant Planner
SUBJECT:Title
Consideration of Amendments to the Municipal Code and Local Coastal Program (LCP) Prohibiting Cultivation of Commercial Medical Marijuana Activity in the City and Allowing Limited Cultivation of Medical Marijuana for Personal Use by Qualified Persons (Community Development Director Lundstedt).
CONDUCT PUBLIC HEARING, INTRODUCE ORDINANCE NOS. 15-0036 AND 16-0001
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Recommended Action
RECOMMENDATION:
Staff recommends that after conducting the public hearing, the City Council waive further reading and introduce Ordinance No. ORD 15-0036 (Attachment 1) approving amendments to the Manhattan Beach Municipal Code and Ordinance No. ORD 16-0001 (Attachment 2) approving amendments to the Local Coastal Program (LCP) prohibiting the cultivation of medical marijuana in the City either:
(1) With limited exceptions for qualified persons (as recommended by the Planning Commission) subject to developmental and operational standards; or
(2) With no exceptions.
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FISCAL IMPLICATIONS:
There are no direct fiscal impacts as a result of the adoption of the Municipal Code and Local Coastal Program Amendments.
EXECUTIVE SUMMARY:
Manhattan Beach Municipal Code Section 10.60.160 prohibits medical marijuana dispensaries, which is defined as any facility or location where medical marijuana is cultivated or made available to a qualified patient, a person with an identification card, or a primary caregiver as those terms are defined by state law.
In 2015, the California State Legislature enacted the Medical Marijuana Regulation and Safety Act which reinforces that cities may prohibit dispensaries, but requires a city to adopt local land use regulations if that city wants to prohibit or regulate the cultivation of medical marijuana.
Thus, the Council must take action this month so that the ordinance is in effect by March 1, 2016.
BACKGROUND:
State Regulations
In 1996, the voters of the State of California approved Proposition 215 entitled "The Compassionate Use Act of 1996" ("CUA") to enable seriously ill Californians, under the care of a physician, to legally possess, use, and cultivate marijuana for medical use under state law. In 2003, the California Legislature adopted SB 420 entitled the Medical Marijuana Program ("MMP") which permits qualified patients and their primary caregivers to associate collectively or cooperatively to cultivate marijuana for medical purposes without being subject to criminal prosecution under the California Penal Code. Neither the CUA nor the MMP require or impose an affirmative duty or mandate upon a local government to allow, authorize, or sanction the establishment of facilities that cultivate medical marijuana within its jurisdiction. Under the Federal Controlled Substances Act, the use, possession, and cultivation of marijuana are unlawful and subject to federal prosecution without regard to a claimed medical need.
Governor Brown recently signed into law the MMRSA (Medical Marijuana Regulatory and Safety Act), which is comprised of three related bills: AB 243, AB 266, and SB 643. The MMRSA establishes licensing requirements for the cultivation, distribution, and transportation of medical marijuana, safety and testing standards for medical marijuana and medical marijuana products, and regulates the physicians who recommend or prescribe medical marijuana to patients. The MMRSA contains statutory provisions that allow local governments to maintain local control over medical marijuana and does not require a city to allow medical marijuana activity within its borders.
Per Assembly Bill 243, the City is required to take action by March 1, 2016 to establish local land use regulations. Failure to do so will result in the state being the sole licensing authority. On December 1, 2015 the City Council adopted Urgency Ordinance No. ORD 15-0036U (Attachment 4) prohibiting cultivation of medical marijuana and commercial medical marijuana activity in all zones in the City. The proposed Ordinances on tonight’s agenda would replace the Urgency Ordinance as permanent regulations citywide.
Planning Commission Recommendation to Prohibit Commercial Cultivation, but Allow Persons Needing Medicinal Marijuana to Cultivate Small Amounts at Home For Personal Use.
On December 9, 2015, the Planning Commission conducted a noticed public hearing to consider prohibiting or regulating cultivation of medical marijuana and commercial medical marijuana activity in the City. At that meeting, after significant discussion, the Commissioners were universally in favor of prohibiting commercial medical marijuana activity, and commercial medical marijuana cultivation. However, they also wanted to allow seriously ill Californians to cultivate medical marijuana at home for personal, non-commercial use, as allowed under the Compassionate Use Act.
The Commission recommends allowing a person with an identification card or qualified patient to cultivate medical marijuana at home for personal use only. After considerable discussion and deliberation, the Commission adopted Planning Commission Resolution No. PC 15-07, 4:0, (Attachment 3) as amended, recommending that the Council adopt an ordinance prohibiting cultivation of commercial medical marijuana activity but to allow limited cultivation of medical marijuana for personal use at home by a qualified patient or person with an identification card.
DISCUSSION
Cultivation of Medical Marijuana
The MMRSA provides that the State Department of Food and Agriculture will be the sole licensing authority for medical marijuana cultivation applications effective March 1, 2016, if a city does not have a land use ordinance in place regulating or prohibiting the cultivation of medical marijuana.
Manhattan Beach Municipal Code Section 10.60.160 (Attachment 5) currently prohibits medical marijuana dispensaries. A medical marijuana dispensary is defined as "any facility or location where medical marijuana is cultivated or made available to and/or distributed by any of the following: a qualified patient, a person with an identification card, or a primary caregiver." See Section 10.60.160(A)(3).
Consistent with the Commission recommendation, the attached ordinance prohibits all cultivation of medical marijuana in the City, except cultivation at home for personal medical use by a qualified patient or a person with an identification card.
If the Council wants to concur with the Commission’s recommendation, staff recommends that:
(1) Primary caregivers not be provided the same exemption because the justification for allowing the user of the medicinal marijuana to grow small amounts at home based upon health reasons does not support allowing the primary caregiver to cultivate at his or her residence, who, implicitly, is healthy enough to be able to purchase medicinal marijuana and travel to the home of the patient. Likewise, the primary caregiver can also administer any medicinal marijuana grown on-site at the patient’s home. As shown below, allowing the primary caregiver to grow marijuana off-site for numerous patients can lead to the well-documented abuse of the Compassionate Use Act; and
(2) Cultivation be subject to conditions and the following operational standards, built into the draft ordinance. Section 10.60.160 B 3(a) of the draft Zoning Ordinance provides: “Qualified patients and persons with identification cards may cultivate small amounts of marijuana cultivation for his or her own personal use, provided the cultivation:
a. Occurs indoors on the property where the qualified patient/ person with identification card resides.
b. Occurs indoors in a legally permitted one-family detached dwelling.
c. Does not exceed twelve marijuana plants.
d. Is not visible from the exterior of the dwelling.
e. Shall not adversely affect the health or safety of other persons by creating dust, excessive light, noise, noxious gases, odor, smoke, or other negative impacts.
f. Shall not occur on any property containing a day care small family home or day care large family home (as defined in Section 10.08.030).
g. Shall not occur on any premises located within 1,000 linear feet of any school, religious establishment, community center or park.”
If the Council does not want any exceptions, Sections B.3.a can be deleted from Ordinance No. 15-0036 and Ordinance No. 16-0001 prior to first reading. Similarly, if the Council wants an exception for seriously ill persons, it has the discretion to modify the proposed developmental and operational standards.
The justification for banning commercial medical marijuana cultivation pursuant to the City's police power includes, without limitation: 1) the increased risk to public safety, based on the value of marijuana plants and the accompanying threat of break-ins, robbery and theft, and attendant violence and injury; 2) the strong "skunk like" malodorous fumes emitted from mature plants that can interfere with the use and enjoyment of neighboring properties by their occupants; and 3) the risk of electrical fire hazards caused by medical marijuana cultivation.
Criminal activity is often associated with medical marijuana activity. As marijuana plants begin to flower, and for a period of two months or more, the plants produce a strong, unique odor, offensive to many people, and detectable far beyond property boundaries if grown outdoors. This odor can have the effect of encouraging theft by alerting persons to the location of the valuable plants, and creating a risk of burglary, robbery or armed robbery of the plants and creating the potential for violent acts related to such criminal activity.
Furthermore, indoor cultivation of marijuana, often unattended, has potential to cause harm to persons and property in that the use of high wattage grow lights and excessive use of electricity increases the risk of fire which presents a distinct risk of harm to the building and its occupants. Buildings where marijuana is cultivated are often illegally wired and have overloaded electrical systems that result in fires. In 2015 alone, there were a number of reported incidents of indoor marijuana cultivation sites causing fires. On February 9, 2015, there was a fire in a residence in Sacramento that was caused by the indoor cultivation of marijuana. On February 19, 2015, there was an electrical fire in Arcadia caused by an indoor marijuana cultivation operation. On April 24, 2015 there was an explosion in a Silver Lake home that leveled the house and destroyed several cars that was caused by an indoor marijuana cultivation operation. In May 2015, a fire erupted in a commercial building in Sun Valley that was caused by indoor marijuana grow house. In that same month, there was a fire in an Elk Grove home caused by an overheated illegal electrical power connection used to power an indoor marijuana grow house. In June 2015, there was a fire in a Sacramento residence caused by an indoor marijuana grow house. In July 2015, there was a fire in a Baldwin Park home caused by grow house. In September 2015, there was a fire in the garage of a Sun Valley residences that was caused by an indoor marijuana grow house. On October 23, 2015, there was a fire in a Rialto home that was caused by an indoor marijuana grow, started by an electrical panel that burst.
Commercial Medical Marijuana Activity
Commercial medical marijuana activity can adversely affect the health, safety, and well-being of City residents, visitors and workers. In order to more fully protect the public health, safety and welfare, prohibiting commercial medical marijuana activity is proper and necessary to avoid the risks of criminal activity, degradation of the natural environment, noxious smells and indoor electrical fire hazards that may result from such activities. Moreover, the manufacturing, processing, storing, laboratory testing, and labeling of medical marijuana will support medical marijuana dispensaries which impact the public health, safety and welfare.
The City is committed to the efficient and effective use of limited regulatory, investigatory, and prosecutorial resources, and the commercial cultivation of medical marijuana and the establishment of commercial medical marijuana sites in the City would require the City to use its limited resources to regulate and prevent potentially negative outcomes generated by commercial medical marijuana activity.
Non-Commercial Medical Marijuana Cultivation for Personal Use
Proposition 215, the Compassionate Use Act was enacted to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. Consistent with the directives of the Compassionate Use Act non-commercial medical marijuana cultivation for personal use can help to provide safe, organic and low cost access to qualified individuals, provided the Council adopts development and operational standards. The State has imposed guidelines that determine the basic maximum number of plants, and area that may be used for cultivation.
POLICY ALTERNATIVES
Option 1: Limited Personal Use (Planning Commission recommendation).
Adopt Ordinances (Attachments 1 and 2) as recommended by the Planning Commission prohibiting cultivation of commercial medical marijuana activity but to allow limited cultivation of medical marijuana for personal use by a qualified patient or cardholder.
PROS:
Qualified individuals would be allowed to cultivate medical marijuana at home for personal, non-commercial use.
CONS:
The risks and potential negative impacts to the City and its residents (e.g., criminal activity, fires, and nuisances) would increase. Moreover, identification cards have been issued indiscriminately, so persons holding such cards may violate the City’s ordinance and cultivate for commercial uses.
Option 2: Complete Prohibition (As Initially Recommended by Staff)
Adopt ordinances prohibiting cultivation of all medical marijuana and commercial medical marijuana activity in the City.
PROS:
Prohibiting all cultivation would mitigate the risks of criminal activity, fires, nuisances, etc.
CONS:
Patients who need marijuana for legitimate, medical purposes would not be allowed to cultivate or grow plants at home.
PUBLIC OUTREACH/INTEREST
A ¼ page display ad public notice for the proposed MBMC and LCP Code Amendments was published in the Beach Reporter newspaper on December 24, 2015, in compliance with state and local law and mailed to the California Coastal Commission and interested parties. The draft MBMC and LCP Amendments, including the staff report and attachments, have been made available at the Manhattan Beach County Library, the Police Department and at the City Clerk’s office. The staff report and all attachments are also posted on the City’s website.
ENVIRONMENTAL REVIEW
Pursuant to the California Environmental Quality Act (“CEQA”), the Community Development Department has determined that the proposed prohibitions on the cultivation of medical marijuana and on commercial medical marijuana activity are exempt from the requirements of CEQA and the City’s CEQA Guidelines pursuant to CEQA Guidelines Section 15061(b)(3) because it can be seen with certainty that there is no possibility that the proposed prohibition on marijuana cultivation and commercial medical marijuana activity within the City’s jurisdiction will have a significant effect on the environment. The ordinances reinforce existing restrictions on cultivation, and will thereby serve to eliminate potential significant adverse environmental impacts. The ordinances will not have an impact on the physical environment, as they will not result in any changes to the environment.
LEGAL REVIEW
The City Attorney has approved the ordinances as to form.
CONCLUSION:
Introduce Ordinance No. ORD 15-0036 and Ordinance No. ORD 16-0001 prohibiting the cultivation of medical marijuana in the City either:
(1) With limited exceptions for qualified persons (as recommended by the Planning Commission), subject to developmental and operational standards; or
(2) With no exceptions and delete Section B.3.a. from the draft Ordinances.
Attachment:
1. Draft Ordinance No. ORD 15-0036- MBMC
2. Draft Ordinance No. ORD 16-0001- LCP
3. Planning Commission Resolution No. PC 15-07
4. Urgency Ordinance No ORD 15-0036U- December 1, 2015
5. Current MBMC Section 10.60.160
6. Planning Commission staff report and attachments- December 9, 2015
7. Planning Commission draft minutes- December 9, 2015
cc. California Coastal Commission